Richard Garth, C.J. (Macpherson, J., concurring)
1. The only question which we have to decide in this ease is whether the former judgment is a res judicata.
2. The plaintiffs sue for the rent of a tenure at the rate of Rs. 92 a year; and the answer of the defendants is, that many years ago, in the year 1867, a suit was brought by the plaintiffs for the rent of this same tenure at the rate which they now claim; and the answer which the defendants then made was, that the lease originally professed to grant more land than the lessors had any right to convey, and consequently the defendants claimed a deduction on the ground that some 24 bighas, which were covered by the potta, had been taken out of their hands by some one who had a better title to it than the plaintiffs; and the result of that suit, which was tried before the Deputy Collector, was, that an abatement of rent was made in favour of the defendants, and the jumma was assessed at Rs. 41-11.
3. The defendants, set up this judgment obtained before the Deputy Collector as a bar to this suit, and the Subordinate Judge has held that the defence is a good one.
4. The defendant contends that the Subordinate Judge was wrong. He argues, that according to the true meaning of Section 13 of the Code of Civil Procedure, where the Court in which the second suit is brought is a Court of different jurisdiction from that in which the first suit was brought, then Section 13 does not apply; and therefore as the Deputy Collector's Court in the year 1867 was a Court of different jurisdiction from that of the Munsif who tried this case, the decision in the first suit is no bar.
5. We think that this is not the true meaning of Section 13. The question which we have now to determine appears to have arisen in a somewhat different form in the case of Gopinath Chobey v. Bhaghwat Pershad and Anr. decided by Mitter and Norris, JJ., and reported in I.L.R. 10 Calcutta, 697.
6. The question there arose in this way. A suit was first brought to recover certain property, of which the value at that time was less than Rs. 1,000, and therefore the proper Court to try it was that of the Munsif.
7. A second suit was afterwards brought, between the same parties in the Court of the Subordinate Judge, to recover the same property, which had then risen in value and become worth more than Rs. 1,000; and it was contended that as the Munsif could not have tried the second suit in consequence of the value of the property being more than Rs. 1,000, Section 13 did not apply. But Mr. Justice MITTER in delivering the judgment of the Court said this: 'We are of opinion, that this construction of Section 13 is not correct. It is well known that in this country the value of landed property is increasing every day. A suit regarding a particular property may be, so far as the pecuniary value of it is concerned, properly cognizable by a Munsif to-day, and ten years hence a suit for that property, having regard to its pecuniary value then, might not be cognizable by the Munsif. But it would be unreasonable to hold, in a suit which might be brought ten years hence, that a decision between the same parties to-day passed by a Munsif having full jurisdiction would not be res-judicata ten years hence. The reasonable construction of the words in a Court of jurisdiction competent to try such subsequent suit, seems to us to be that it must refer to the jurisdiction of the Court at the time when the first suit was brought; that is to say, if the Court which tried the first suit was competent to try the subsequent suit, if then brought, the decision of such Court would be conclusive under Section 13, although on a subsequent date by a rise in the value of such property, or from any other cause, the said Court ceased to be the proper Court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property.'
8. Accordingly the learned Judges in that case held, that the decision in the former suit was a res-judicata in the case then under discussion.
9. We entirely agree in the principle thus laid down, and we think it applies here. There is no doubt that the Court in which this suit is brought, and that in which the former suit was brought, are Courts of different jurisdictions; but at the same time the Court in which the former suit was brought was the only Court at that time competent to try suits of that kind, and if this very suit had been brought at that time, the Deputy Collector's Court would have been the only Court competent to try it.
10. We think, therefore, the Subordinate Judge was right in holding that the decision in the former suit is a bar to this suit.
11. The appeal must, therefore, be dismissed with costs.